Can porn be copyrighted? One file-sharing defendant says no

The strange case of Hard Drive Productions versus "anyone that the video company's lawyers suspect of illegally downloading its pornographic movies" has taken a new and interesting twist. One of the nearly 1,500 "Does" being sued for allegedly sharing a Hard Drive film online has resorted to what seems, at first glance, like a novel defense. In addition to her insistence that she never actually downloaded "Amateur Allure Jen," Liuxia Wong of Solano County, California argues that copyright law doesn't even apply to smut clips. They are not copyrightable, and therefore no infringement occurred.

The matter is quite simple, Wong's petition for declaratory relief explains to the federal court in San Francisco. Article I, Section 8, Clause 8 of the US Constitution defines the purpose of copyright: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Notice the words "science" and "useful arts" in the aforementioned sentence? Since when did movies with acronyms like "P.O.V." or "M.I.L.F." qualify as either? Therefore, "copyright is authorized only for works which promote the progress of science and the useful arts," says Wong's lawyer from the firm of Murphy, Pearson, Bradley & Feeney.

"Early Circuit law in California held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protected by copyright," the brief also notes, then reiterates the point another seven times:

86. Hard Drive's work does not promote the progress of science.

87. Hard Drive's work does not promote the useful arts.

88. Hard Drive has judicially admitted that its work is adult pornography.

89. Hard Drive's work depicts obscene material.

90. Plaintiff is informed and believes, and thereon alleges that to create the work, Hard Drive and its agents and/or its employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.

91. Hard Drive's work depicts criminal acts and/or conduct.

92. Hard Drive's work is not copyrightable.

Holy utilitarianism, Batman . . . is this true? Do the language and stated assumptions of the Copyright Act really exempt garden variety smut video from its protections? And if so, how are people being sued in porn file-sharing cases across the country?

Swarm questions

Before we wade too deep into these particular waters, it's worth noting that the great Hard Drive anti-piracy crusade is a fairly dubious affair. Last August, a California judge took a meat-axe to the company's claim that 188 alleged P2P downloaders could be sued together in one filing.

"Even if the IP addresses at issue in this motion all came from a single swarm, there is no evidence to suggest that each of the addresses 'acted in concert' with all of the others," federal Magistrate Judge Joseph Spero told the anti-piracy team of Steele Hansmeier. "In fact, the nearly six-week span covering the activity associated with each of the addresses calls into question whether there was ever common activity linking the addresses in this case."

Spero then reduced the case to one defendant. Undaunted, Hard Drive lawyers went to a different court in Washington, DC with another 1,500 Does, plus a generous dose of spleen for the advocacy group Electronic Frontier Foundation (EFF).

EFF is "opposed to any effective enforcement and litigation of intellectual property law," explains one of their latest filings. "A radical interest group," the tirade continues, EFF has a mission that is "radical, quasi-anarchist, and intrinsically opposed to any effective enforcement of intellectual property rights."

But the odd accusations don't help Liuxia Wong. Following her ISP's disclosure of her name, address, and telephone number to Hard Drive's lawyers, Wong received a letter demanding that she settle the action for $3,400 or face a $150,000 lawsuit. In response, she told Hard Drive's attorneys that she did not download the movie in question and that she did not know who did. Her ISP set up her Wi-Fi system, she said. She believed the Hard Drive letter was something of a shakedown.

"Plaintiff is informed and believes, and thereon alleges that Hard Drive knew that plaintiff would incur substantial costs and attorneys' fees if her deposition were to proceed, and used this information to extract a settlement from plaintiff," her attorneys say. They responded by challenging the very core of the case, the copyrights at issue in Hard Drive's films.

So lets take a look at these early California copyright decisions that Murphy, Pearson lawyers say lend credence to their legal case. In correspondence with Ars, they pointed to two.

Black rooks and hotties

In 1867, California's federal circuit court system heard the case of Martinetti v. Maguire. The latter was a playwright who brought suit against the former, in large part because Martinetti's ribald play "The Black Crook" appeared to be little more than a cheap knockoff of Maguire's earlier play "The Black Rook." But a judge overseeing the matter saw little point in pursuing the case much further, because neither production could be construed as a copyrightable work:

Now it cannot be denied that this spectacle of the Black Crook only attracts attention as it panders to a prurient curiousity or an obscene imagination by very questionable exhibitions and attitudes of the female person. True, the lawfulness of such an exhibition depends upon the law of the place where it takes place. But when the author, inventor or proprietor thereof asks the power of this Court to protect him in the exclusive right to make such an exhibition under the copyright act, the matter assumes a very different aspect.

Thus, with a drama "which is grossly indecent, and calculated to corrupt the morals of the people," the judge continued, its exhibition "neither 'promotes the progress of science or useful arts,' but the contrary. The constitution does not authorize the protection of such productions, and it is not to be presumed that congress intended to get beyond its power in this respect to secure their 'authors and inventors the exclusive right' to the use of them."

"Upon this ground," the judge concluded, "I very much doubt whether the spectacle of the Black Crook is entitled to the benefit of copyright, even if it were admitted that it was a 'dramatic composition'."

Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar

Isn't this basically the opposite of what the "Right to bear arms" defenders user. Think about it, in the right to bear arms we're supposed to forget the but at the front about the "Well regulated milita" and just focus on the 2nd part. If this were to pass, could it also mean that the 2nd amendment has to be read in its entirety - not just the but at the end?

"Notice the words "science" and "useful arts" in the aforementioned sentence? Since when did movies with acronyms like "P.O.V." or "M.I.L.F." qualify as either? "

Well, I don't think the jackass movies qualify as either.Or Harold and Kumar.Or...you really wanna go down this road?.

C'mon, this could be LOTS of fun.

ChickenHawk wrote:

Isn't this basically the opposite of what the "Right to bear arms" defenders user. Think about it, in the right to bear arms we're supposed to forget the but at the front about the "Well regulated milita" and just focus on the 2nd part. If this were to pass, could it also mean that the 2nd amendment has to be read in its entirety - not just the but at the end?

There's a possibility, but 'to promote the progress' is actually the POWER given to Congress, with copyright and patents being the MEANS to do so, so it's not all that comparable.

not trolling. Please, dear Crackhead Johny, tell me what VALUE porn brings to society. I don't mean an orgasm in your room, hiding in the dark hoping your mom doesn't see you. That's not value. what VALUE does it bring to society. No, that's cool. take your time. i'll wait. think about it.

Because it shouldn't be up to you to determine what counts or doesn't count as art. People's ideas of value and of pornography or "smut" vary drastically, and have let to stupid crap like attempting to ban books like Lolita. If you basically say that porn has no value, you have to start categorizing what is porn and what isn't, and that's frequently something people have no business deciding.

not trolling. Please, dear Crackhead Johny, tell me what VALUE porn brings to society. I don't mean an orgasm in your room, hiding in the dark hoping your mom doesn't see you. That's not value. what VALUE does it bring to society. No, that's cool. take your time. i'll wait. think about it.What value does a movie like Transformers bring to society? I can't think of any, guess it shouldn't qualify for Copyright protection either.

The diversionary value of "bread and circuses" can't be underestimated.

This case will never hold up to the level of the Supreme Court. First of all the lady says she never downloaded their porn. And second of all, if the porn in question is a unique product, I.E. not copied from somebody else's porn, and it is sold for commercial gain, it can be infringed by downloaders. This is against the law. It's redeeming value does not enter into the argument. Art is in the eye of the beholder. The copyright infringing fanbase should be much more worried if this lady wins her case, as it would mean that the state has a hand in deciding what is art and what isn't. A very bad situation, indeed. Think about it.

Let me see if I get this straight... SOME original movies (regardless of the plot or quality of the film) are regarded as NOT protected under copyright laws? And others are? Who is to be the judge of which movies are protected and which aren't? Could we argue that even some Hollywood movies released in theaters are porn? I think many folks would argue that very point. Does that mean those movies aren't copyrighted and can therefore be distributed freely? If that's the case, then were is the line drawn on which movies are and aren't copyrighted?

No. It's either one or the other. Movies are either copyrighted or not. Just because some people don't like the content of some movies doesn't exclude them from the same copyright protections as the rest. Once you start using subjective judgements to define the law, then the law becomes so blurred and open to interpretation as to be deliberately confusing and ultimately counterproductive.

Either that, or we simply relax the copyright protections across the board.

the defendant should win this. Porn is a vulgar, disgusting industry, that works to undermine our very society. It should not be protected. The actual VALUE of porn is non existent.

I could make the same argument against the regular movie industry, or pop music too. But that's all subjective to personal opinion.

And besides, porn producers do not "work to undermine society;" they do it to make money. Just like everyone else. They just do it with products that you don't approve of. So what? I don't approve of auto-tuning pop stars and lip syncing in concerts, but my opinion, like yours, means squat.

not trolling. Please, dear Crackhead Johny, tell me what VALUE porn brings to society. I don't mean an orgasm in your room, hiding in the dark hoping your mom doesn't see you. That's not value. what VALUE does it bring to society. No, that's cool. take your time. i'll wait. think about it.

What value does a movie like Transformers bring to society? I can't think of any, guess it shouldn't qualify for Copyright protection either.

I think that's a valid concern. WHY would we spend tax dollars defending and policing something that brings no value. You could argue it brings economic value. but you'd have to prove that it was a net benefit, after accounting for the counseling, drug therapy, disease treatments, marriage counseling (for those watching it, 50% of divorces these days have internet porn as a "cause"). You'd have a hard time doing that with pornography. Such a case might be made for transformers, that it does bring net economic value. there are of course other values that it might bring. But there should be a litmus test before we run out and waste tax $ punishing people, or protecting it.

As for the "government shouldn't say some stuff is bad" argument, it's not a valid argument. you in favor of repealing child pornography bans? the fact is, society needs to regulate its content, or it will quickly succumb to the attraction of decadence. the fact that you live in a world where you think MOST of the content is valid is a testament to the success of that regulation. I'm in favor of the arts, and the freedom to produce them. I'm just not convinced that "milf anal rampage" is art.

Porn has value. It saves money going rather than going to a strip club or hiring a prostitute (j/k). It is also a business and people have jobs, pay taxes, and contribute to the economy. You may have moral issues against porn, but it is consenting adults doing things that some adults want to see.

the defendant should win this. Porn is a vulgar, disgusting industry, that works to undermine our very society. It should not be protected. The actual VALUE of porn is non existent.

Forbes recently estimated the industry at $14 billion per year ... clearly a lot of people think it's a worthwhile pursuit. Not to mention the millions of jobs it supports.

tons of people do heroine. let's protect that. millions of people internationally make money using "force labour", or as it's commonly called, slavery. because people make money at it, doesn't mean it happens in a vacuum. I've ran factories in the third world. my tag isn't a joke. just because we make money at it, doesn't mean it doesn't have victims. And I already stated i think it goes beyond just the "porn actors".

"In a 2004 testimony before the United States Senate, Dr. Jill Manning shared some interesting data regarding pornography and relationships. In her research she found that 56 percent of divorce cases involved one party having an obsessive interest in pornographic websites. Another source, the American Academy of Matrimonial Lawyers, polled 350 divorce attorneys in 2003 where two thirds of them reported that the Internet played a significant role in the divorces, with excessive interest in online porn contributing to more than half such cases."

Isn't this basically the opposite of what the "Right to bear arms" defenders user. Think about it, in the right to bear arms we're supposed to forget the but at the front about the "Well regulated milita" and just focus on the 2nd part. If this were to pass, could it also mean that the 2nd amendment has to be read in its entirety - not just the but at the end?

This is pretty off-topic but even read in its entirety the Second Amendment never requires a militia as a prerequisite to owning a gun. Just that so as not to infringe on our right to *form* a militia people have a right to "bear arms" (i.e. own firearms). Militias by definition are non-standing emergency forces composed of normal citizens, requiring a militia for the owning of a weapon wouldn't even make sense.

the defendant should win this. Porn is a vulgar, disgusting industry, that works to undermine our very society. It should not be protected. The actual VALUE of porn is non existent.

That's a very slippery slope you're standing on there. So, it's ok to act like the porn industry has no value (even though, by its very nature of being PAID tons of MONEY for what it does, apparently lots of people DO find value in it). But, what next? Religious texts? Scientific articles someone in power doesn't agree with? You don't agree with something, so it's ok to leave it hanging? But, that sets up the precedence for others to follow...including things you DO value, but others do not.

Porn has value. It saves money going rather than going to a strip club or hiring a prostitute (j/k). It is also a business and people have jobs, pay taxes, and contribute to the economy. You may have moral issues against porn, but it is consenting adults doing things that some adults want to see.

hold up. i'll videotape me beating my wife, don't worry, she's consenting, then sell it to you. cool? you can post it around on the net, for kids to watch, but don't forget your "are you 18" button, cause they won't get past that. get a few million hits, have some copycats, yeah, this sounds like a great plan. (not going to do it, obviously, that would be sick). EVEN if my wife is consenting, that doesn't mean it won't have a net negative impact on the people watching it. I'm not sure how you could argue that it requires protecting... I'm not saying to make it illegal, it wouldn't work anyway. I'm saying why are we PROTECTING it. wasting court time, taxpayer $, etc.

Let me see if I get this straight... SOME original movies (regardless of the plot or quality of the film) are regarded as NOT protected under copyright laws? And others are? Who is to be the judge of which movies are protected and which aren't? Could we argue that even some Hollywood movies released in theaters are porn? I think many folks would argue that very point. Does that mean those movies aren't copyrighted and can therefore be distributed freely? If that's the case, then were is the line drawn on which movies are and aren't copyrighted?

No. It's either one or the other. Movies are either copyrighted or not. Just because some people don't like the content of some movies doesn't exclude them from the same copyright protections as the rest. Once you start using subjective judgements to define the law, then the law becomes so blurred and open to interpretation as to be deliberately confusing and ultimately counterproductive.

Either that, or we simply relax the copyright protections across the board.

+1. This whole argument on the scientific merits is a slippery slope waiting to happen.

A thought occurs on the originality of a work, which is a litmus test for copyright. Is porn with no plot at risk of losing copyright because it's unoriginal and essentially a copy of any other film that has no plot and only depicts sex acts?

I challenge anyone to provide me with any tangible effect holding no value whatsoever.

Porn has value to a large community of people. In fact, there is more to be learned from porn than there is most moral-devoid films in produced nowadays. I, however, strongly abhor any sexual abuse to another or abuse to incite sexual arousal for others. Anyway, porn has excellent value as a tool to improve a sexual relationship or just entertainment. In essence, it's a film depicting sexual stimulation to self and/or another. Sometimes, there is pain involved, but the members are consenting. "Not always." Right. I'm not talking about illegal flicks.

I like to compare porn to boxing or MMA. Loads of money is earned in those sports. Basically, millions of people pay to watch two consenting adults to pummel each other. And those fights are copyrighted, are they not? Blood, cuts, swelling, consussions, long-term complications, etc. and society feels it's legit.